Team Code-R03

3rd EDITION BAL GANGADHAR TILAK NATIONAL

MOOT COURT COMPETITION, 2023

IN THE HON’BLE SUPREME COURT OF INDIANA

In the Matter Between

APPELLATE JURISDICTION
SLP NO. 2546 OF 2020

DR. BHOLENATH NAIK ……………………...…………………...……….…. APPELLANT

v.
HON’BLE SPEAKER LOK SABHA……………………………………….... RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIANA

-MEMORANDUM ON BEHALF OF THE RESPONDENT-

 3RD BAL GANGADHAR TILAK NATIONAL MOOT COURT COMPETITION, 2023

TABLE OF CONTENTS

Sl. No. Topic Title Page No.

1. CAUSE TITLE (COVER PAGE) 1
2. TABLE OF CONTENTS 2
3. LIST OF ABBREVIATIONS 3
4. INDEX OF AUTHORITIES 4
5. STATEMENT OF JURISDICTION 7
6. STATEMENT OF FACTS 8
7. ISSUES RAISED 10
8. SUMMARY OF ARGUMENTS 11
9. ARGUMENTS ADVANCED 13

ISSUE 01: WHETHER THE SUPREME COURT OF

INDIANA HAS THE JURISDICTION TO ENTERTAIN THE
PRESENT PETITION? 13

ISSUE 02: WHETHER THE SPEAKER WHILE DECIDING

THE MATTER UNDER THE 10TH SCHEDULE SATISFIES
THE REQUIREMENT OF INDEPENDENT ADJUDICATORY
15
MACHINERY?
ISSUE 03: WHETHER THE 10TH SCHEDULE OF THE
CONSTITUTION PROHIBITING HONEST AND GENUINE
DISSENT DESERVES TO BE DECLARED AS
19
UNCONSTITUTIONAL?
ISSUE 04: WHETHER SECTION 2(B) OF THE 10TH
SCHEDULE VIOLATES PARLIMENTARY PRIVILEGES
PROVIDED UNDER ARTICLE 105 OF CONSTITUTION?
22
10. PRAYER 25

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LIST OF ABBREVIATIONS

Sl.No. Abbreviation Description

1. AIR All India Reporter

2. Etc Etcetera

3. Govt Government

4. HC High Court

5. Hon’ble Honourable

6. No Number

7. Ors Others

8. Sec./ § Section

9. SC Supreme Court

10. SCC Supreme Court Cases

11. SCR Supreme Court Reporter

12. UOI Union of India

13. Vs Versus

14. W.P. Writ Petition

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INDEX OF AUTHORITIES
BIBLIOGRAPHICAL INFORMATION

I. CASES CITED:

Sl.No. Case Name Equivalent Citation(s)

1. A.V. Papayya Sastry v. Government of Andhra AIR 2007 SC 1546.

Pradesh
2. Aero Traders Private Limited v. Ravider Kumar AIR 2005 SC 15.
Suri
3. B. Surinder singh kanda v. Government of the
[1962] A.C. 322.
Federation of Malaya

4. Chief Administrator cum Jt. Secretary, Government

AIR 1999 SC 186.
of India v. D. C. Dass

5. City Corner v. P.A. to the Collector AIR 1976 SC 143.

6. Clerks of Calcutta Tramways v. Calcutta Tramways AIR 1957 SC 78.
Co. Ltd.
7. DCM v. Union of India AIR 1987 SC 2414.
8. Fazal Bhai Dhala v. Custodian-General, Evacuee (1962) 1 SCR 456.
Property
9. G. Viswanathan v. T.N. Legislative Assembly (1996) 2 SCC 353.
10. Jagdish Gandhi v. Legislative Council 1965 SCC OnLine All
378.
11. Kihoto Hollohan v. Zachillhu 1992 Supp (2) SCC 651.

12. M.C. Mehta v. Union of India

AIR 2004 SC 4618.

13. Mahachandra Prasad Singh (Dr.) v. Chairman, Bihar

(2004) 8 SCC 747.
Legislative Council

14. Maneka Gandhi v. Union of India (1978) 1 SCC 248.

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15. Mehar Singh v. Shri Moni Gurudwara Prabandhak AIR 2000 SC 492.
Committee
16. Mohan Lal v. Management, Bharat Electronics Ltd.
AIR 1981 SC 1253.

17. Mohinder Singh Gill v. Chief Election Commr. (1978) 1 SCC 405.
18. Mt. Atra Devi and Ors. vs Ramswaroop Prasad Singh (1972) PAT 186.
and Ors
19. N.Suriyakala v. A. Mohandoss (2007) 9 SCC 196.
20. Nabam Rebia, and Bamang Felix vs. Deputy Speaker (2017) 13 SCC 332.
Arunachal Pradesh Assembly and Ors
21. Pritam Singh v. The State AIR 1950 SC 169.
22. Rajendra Singh Rana v. Swami Prashad Maurya
(2007) 4 SCC 270.
&Ors

23. Ravi S. Naik v. Union of India 1994 Supp (2) SCC 641.
24. Shri Avtar Singh Bhadana v. Shri Kuldeep Singh, Sept. 10, 2008.
Indian National Congress, Lok Sabha Bulletin
25. Siemens Eng &Mfg Co. v. Union of India AIR 1976 SC 1785.
26. Zahira Habibullah Sheikh v. State of Gujarat
AIR 2004 SC 3467.

II. STATUTES REFERRED:

Sl. No. Statute Name

1. The Constitution of India

III. DICTIONARIES AND BOOKS/JOURNALS REFERRED:

1. D.D. Basu, Constitutional Law of India, Lexis Nexis (2013)

2. M.P. Jain, Indian Constitutional Law, Lexis Nexis (2015)

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3. Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency

(2022)

4.
P.M. Bakshi, The Constitution of India (11th ed. Universal Law
Publishing Co. Pvt. Ltd)

5. A.R Khan,The Constitution of India (2nd ed. G.K Publications(P)

Ltd)

6. Online Freedom of Speech and Expression: A Critical Analysis, 3 KIIT

Student L Rev 33 (2016)

7. Good Governance and Right to Information: A Perspective, 54 JILI (2012)

50

IV. ELECTRONIC/ONLINE SOURCES:

1. http://supremecourtofindia.nic.in
2. http://www.advocatekhoj.com
3. http://www.barcouncilofindia.org
5. http://www.manupatrafast.com/
6. https://indiankanoon.org/
7. https://www.lawteacher.net
8. SCC Online
9. http://www.legalservicesindia.com/

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STATEMENT OF JURISDICTION

It is humbly submitted that the petitioners have filed this petition before the Supreme
Court under Article 136 of the Constitution of Indiana, which reads as under:

Art 136. Special leave to appeal by the Supreme Court:

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

The Respondent would like to humbly submit that this Special Leave Petition is not
maintainable. Therefore, this Honorable Court need not to entertain this jurisdiction.

The present memorandum sets forth the facts, contentions and arguments in the present
case.

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STATEMENT OF FACTS

Indiana’s parliamentary democracy with its multi-party system:

• There are many national and regional political parties contributing towards national
politics, major among them were National Indiana Congress [herein after NIC] and
Independent Party of Indiana [herein after IPI]
• In general election of 2019 IPI got simple majority in Lok Sabha
• Later IPI was opposed not only by opposition party but also by the members of same
political party upholding the potentiality of having the Minister ship which was not
given by their party

Proposition of the Bill [The National Highway Bill 2017]:

• Proposed on 9th December 2020
• It was criticized by many members considering it as unnecessary as there was
availability of alternative state highways. Especially by the senior leader of the party
Dr. Bholenath Naik has it was against the farmers interest as it would result in
acquisition of thousands of hectares of fertile land
• 27th December 2020 was decided to be date of voting, as there was a strong opposition,
the party leader in Lok Sabha Mr. Abhay Thakkar issued a whip. The bill was passed
with narrow majority. While analyzing the result the ruling party found that two of its
members Dr. Bholenath Naik and Mr. Dependra Keshav were absent for the voting and
issued a show cause notice to them. To support his contention Mr. Deependra Keshav
provided required document but Dr. Bholenath Naik did not provide any such proof
and after few days, Dr. Bholenath Naik in one of the television Interview strongly
criticized the government policy as it was against the interest of farmers.

Action against Dr. Bholenath Naik by the speaker of Lok Sabha:

• Mr. Abhay Thakkar forwarded a petition to the speaker of Lok Sabha Mr. M.V
Narayanan and request was made to take action Against Dr. Bholenath Naik. Notice
was issued to both the parties and asked to present their side within 5days. On 5th day
Dr. Bholenath Naik prayed for the adjournment but it was rejected.

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• On the basis of the evidences produced by both parties, the speaker held Dr Bholenath
naik liable for anti-party activities. Speaker said that opposing his own party in Lok
Sabha, criticizing government policy, publicly in an interview and remaining absent
for voting after whip issued by the party leader indicates Dr Bholenath naik disloyalty
towards the belief and agenda of his own party.
• By relying upon paragraph 2(b) of the 10th schedule of the constitution. Hon’ble
speaker disqualified Dr. Bholenath Naik’s Lok Sabha membership.

Strong contention by Dr. Bholenath Naik before Hon’ble Supreme Court:

• Dr. Bholenath Naik genuinely Consider his stand on proposed bill as rational and in
accordance with principles of representative democracy, and felt member of Lok
Sabha to be accountable to the people of his constituency and not to the party
• Paragraph 2 of the 10th schedule of the constitution empowers the ‘Despotic dictates’
of party whips and high command which undermines the democratic spirits
• Freedom of speech and expression which is the essential feature of inner party
Democracy and it was his parliamentary privilege given under Article 105 of
constitution but Anti defection law is prohibiting honest and genuine dissent, hence it
is unconstitutional
• He further objected the impartiality of the proceeding before the speaker, who in spite
of holding the constitutional post continues membership of his original political
party(IPI) where he can continue with the office of speaker only with the support of
majority
• He stressed that the purpose and object of the Anti-defection law should be to ensure
loyalty of the number to the electorate voter and not to the stability of a particular
government.

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ISSUES RAISED

1.WHETHER THE SUPREME COURT OF INDIANA HAS THE JURISDICTION TO

ENTERTAIN THE PRESENT PETITION?

2.WHETHER THE SPEAKER WHILE DECIDING THE MATTER UNDER THE 10TH
SCHEDULE SATISFIES THE REQUIREMENT OF INDEPENDENT
ADJUDICATORY MACHINERY?

3. WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION PROHIBITING

HONEST AND GENUINE DISSENT DESERVES TO BE DECLARED AS
UNCONSTITUTIONAL?

4.WHETHER SECTION 2(B) OF THE 10TH SCHEDULE VIOLATES

PARLIMENTARY PRIVILEGES PROVIDED UNDER ARTICLE 105 OF
CONSTITUTION?

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SUMMARY OF ARGUMENTS

1.WHETHER THE SUPREME COURT OF INDIANA HAS THE JURISDICTION TO

ENTERTAIN THE PRESENT PETITION?

It is humbly submitted to this Hon’ble Court that there was no error in the decision taken by
speaker and there is no pressing matter or question of law, for which, the intervention of this
Court would be necessary.

In the instant case, the Hon’ble speaker has not committed any error in law. The Hon’ble
speaker has respected the subsisting petition between the parties and has observed that Dr
Bholenath naik was disloyal towards his own party and disqualified the membership. There is
no breach in law or natural justice. Therefore, there is no necessity to invoke the jurisdiction
conferred upon this Hon’ble Court under Article 136.
Hence, it is humbly submitted to this Hon’ble Court that no grounds can be made out for
accepting this petition for Special Leave.

2.WHETHER THE SPEAKER WHILE DECIDING THE MATTER UNDER THE 10TH
SCHEDULE SATISFIES THE REQUIREMENT OF INDEPENDENT ADJUDICATORY
MACHINERY?

The counsel for the Respondent most humbly submits before the Hon’ble court that the
speaker while deciding the matter under 10th schedule satisfies the requirement of
independent adjudicatory machinery. The office of the speaker is held in very high regard and
it’s considered to be the speaker’s role to be unbiased in such dealings. Thus, the speaker has
satisfied the requirement of an independent adjudicatory machinery.

3. WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION PROHIBITING HONEST

AND GENUINE DISSENT DESERVES TO BE DECLARED AS UNCONSTITUTIONAL?

It is humbly submitted before the Hon’ble court that 10th schedule of the constitution does not
constrict any honest and genuine dissent which members are wanted to put forward and its sole
ideology is to bring the stability in the government by preventing the members from floor
crossing, defection and by allegation done by their own party members. Defecting from the
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party under whose banner the representative won the election is an injustice which is
perpetrated on both the constituents of his constituency and his political party. Hence it is
Humbly Submitted before the hon’ble court that the 10th schedule does not violate any honest
and genuine dissent and does not deserves to be declared as unconstitutional.

4.WHETHER SECTION 2(B) OF THE 10TH SCHEDULE VIOLATES PARLIAMENTARY

PRIVILEGES PROVIDED UNDER ARTICLE 105 OF CONSTITUTION?

It is humbly submitted that the section 2(b) of the 10th schedule does not violates
parliamentary privileges provided under article 105 of constitution. So far as the right of a
member under Article 105 is concerned, it is not an absolute one and has been made subject
to the provisions of the Constitution and the rules and standing orders regulating the
procedure of Parliament. The framers of the Constitution, therefore, never intended to confer
any absolute right of freedom of speech on a member of the Parliament and the same can be
regulated or curtailed by making any constitutional provision, such as the 52nd Amendment.
The provisions of Para 2(b) cannot, therefore, be termed as violative of the provisions of
Article 105 of the Constitution.

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ARGUMENTS ADVANCED

ISSUE NO 1. WHETHER THE SUPREME COURT OF INDIANA HAS THE

JURISDICTION TO ENTERTAIN THE PRESENT PETITION?

It is humbly submitted before the hon’ble court that this Hon’ble court does not has the
Jurisdiction to entertain the present petition.

1.1 Irrespective of the locus standi of the petitioner, the Petition for Special Leave is not
maintainable
1. It is humbly submitted before this Hon’ble court that Article 136 does not confer a
Right of Appeal, but merely, a discretionary power to the Supreme Court to be
exercised for satisfying the demands of justice under exceptional circumstances1 .

2. In Pritam Singh v. The State2 , the Supreme Court held that the power under Article
136 is to be exercised sparingly and in exceptional cases only. In concluding the
discussion on Article 136 in the same case, it was held the by the Supreme Court that
‘Generally speaking, this court will not grant Special Leave, unless it is shown that
exceptional and special circumstances exist, that substantial and grave injustice has
been done and that the case in question presents features of sufficient gravity to
warrant a review of the decision appealed against.’

3. Although the power has been held to be plenary, limitless3 , adjunctive and
unassailable4 , in M. C. Mehta v. Union of India5 and Aero Traders Private
Limited v. Ravider Kumar Suri6, it was held that the powers under Article 136
should be exercised with caution and in accordance with law and set legal principles.

4. It is humbly submitted to this Hon’ble Court that there was no error in the decision
taken by speaker. The counsel for the Respondents would also like to submit to this
Hon’ble Court that there is no pressing matter or question of law, for which, the

1
N.Suriyakala v. A. Mohandoss, (2007) 9 SCC 196.
2
Pritam Singh v. The State, AIR 1950 SC 169.
3
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.
4
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467.
5
M.C. Mehta v. Union of India, AIR 2004 SC 4618.
6
Aero Traders Private Limited v. Ravider Kumar Suri, AIR 2005 SC 15.
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intervention of this Court would be necessary. Therefore, there is no necessity to

invoke the jurisdiction conferred upon this Hon’ble Court under Article 136.

1.2 Non-interference in the decision of the lower courts:

5. It is humbly submitted that if it appears prima facie that the order in question cannot
be justified by any judicial standard, the ends of justice and the need to maintain
judicial discipline require the Supreme Court to intervene. The Supreme Court does
not interfere with the conclusion arrived at by the Tribunal if it has taken all the
relevant factors into consideration and there has been no misapplication of the
principles of law7.

6. Normally, in exercising its jurisdiction under Article 136, the Supreme Court does not
interfere with the findings of the fact concurrently arrived at by the tribunal unless
there is a clear error of law or unless some important piece of evidence has been
omitted from consideration8 .

7. Hence, it is humbly submitted that the Supreme Court in the instant case need not
interfere in the decision of the hon’ble speaker. The decision of the Hon’ble speaker is
not erroneous.

1.3 Grounds on which appeal are granted not satisfied:

8. The Supreme Court has exercised its Jurisdiction under Article 136 under the
following circumstances-
(i) When the Tribunal ostensibly fails to exercise its patent jurisdiction9.
(ii) When there is an apparent error on the face of the decision10 .
(iii) The tribunal has erroneously applied well-accepted principles of jurisprudence11.
(iv) The tribunal acts against the principles of Natural Justice12, or has approached the
question in a manner likely to cause injustice13
9. In the instant case, the Hon’ble speaker has not committed any error in law. The

7
DCM v. Union of India, AIR 1987 SC 2414.
8
Mehar Singh v. Shri Moni Gurudwara Prabandhak Committee, AIR 2000 SC 492.
9
Chief Administrator cum Jt. Secretary, Government of India v. D. C. Dass, AIR 1999 SC 186.
10
Siemens Eng &Mfg Co. v. Union of India, AIR 1976 SC 1785.
11
Clerks of Calcutta Tramways v. Calcutta Tramways Co. Ltd., AIR 1957 SC 78.
12
City Corner v. P.A. to the Collector, AIR 1976 SC 143.
13
Mohan Lal v. Management, Bharat Electronics Ltd., AIR 1981 SC 1253.
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Hon’ble speaker has respected the subsisting petition between the parties and has
observed that Dr Bholenath Naik was disloyal towards his own party and disqualified
the membership. There is no breach in law or natural justice; to say the decision of the
Speaker was wrong would be wrong because the matter has not been adjudicated on
merits whatsoever. Hence, it is humbly submitted to this Hon’ble Court that no
grounds can be made out for accepting this petition for Special Leave.

10. It is pertinent to note that The Constitution Bench of Supreme Court in

KihotoHollohan v Zachillhu and Others14 held that Speaker/ Chairman while
exercising powers and discharging functions under the Tenth Schedule act as Tribunal
and according to para 6 of Tenth Schedule the order passed by Speaker is final.

11. Hence it is humbly submitted that this Hon’ble court of Indiana does not have
jurisdiction to entertain such petition.

ISSUE NO 2: WHETHER THE SPEAKER WHILE DECIDING THE MATTER

UNDER THE 10TH SCHEDULE SATISFIES THE REQUIREMENT OF
INDEPENDENT ADJUDICATORY MACHINERY?

1. The counsel for the respondent most humbly submits before the Hon’ble court that the
Speaker while deciding the matter under 10th schedule satisfies the requirement of
independent adjudicatory machinery.

2. The office of the speaker is held in very high regard and it’s considered to be the
speaker’s role to be unbiased in such dealings. Thus, the speaker has satisfied the
requirement of an independent adjudicatory machinery.

3. The Speaker while deciding the current matter under the 10th schedule has acted in
accordance with the rules of schedule 10th. Under para 6, the final authority to take a
decision on the question of disqualification of the member of the house rests with the
speaker\chairman of the house. Their role is only domain of ascertaining the relevant
facts. Once the facts gathered or placed show that a member of the house has done
any such act while comes within a purview of Para 2(1), (2) or (3) of the schedule, the

14
KihotoHollohan v Zachillhu and Others (1992) 2 SCC 651.
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disqualification will apply and the Chairman or The Speaker of the house will have to
make a decision to that effect. The Respondent, as stated above, holds an office of
high importance and one which is traditionally known to be unbiased and impartial.
Thus, it can be reasonably construed that he has indeed satisfied the conditions
required to be independent adjudicatory machinery and he also acts within the scope
given by it.

4. It is humbly submitted that “Natural justice is a sense of what is wrong and what is
right “. In India this concept was introduced at an early time. In the case of Mohinder
Singh Gill v. Chief Election Commissioner15, the concept of fairness should be in
every action whether it is judicial, quasi-judicial, administrative and or quasi
administrative work. Where in the present case the Speaker is the quasi-judicial body.
Hence, he must ensure the fulfilment of natural justice here.

5. The maxim Audi alteram partem, which means that no person can be condemned
\punished without having a fair opportunity of being heard. As it is identified that the
Audi alteram partem is a part of fundamental right in the case of Maneka Gandhi V.
Union of India16.It was also held in this case that there must be an equal opportunity
for both the parties to present their side for argument, if failed to do so, it would result
with a violation of fundamental rights and Natural justice guaranteed by our Indian
Constitution.

6. In the case of Fazal Bhai Dhala v. Custodian-General, Evacuee Property.17., it was

observed that valid and proper notice should be given to the required parties of the
matter to further proceed with the procedure of fair trail method. Even if the statute
does not include the provision of issue of notice, then it will be given prior to making
decisions. In the instant case as well, the prior notice was given by the speaker to the
petitioner (Bholenath) and the party leader (Abhay Thakkar) in order to present their
side of arguments.

7. In the leading case of Malaysia i.e., in B. Surinder Singh Kanda v. Government of

the Federation of Malaya18 .,it was held that notice must directly specify on the

15
Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405.
16
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
17
Fazal Bhai Dhala v. Custodian-General, Evacuee Property, (1962) 1 SCR 456.
18
B. Surinder Singh Kanda v. Government of the Federation of Malaya., [1962] A.C. 322.
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matter of bias, facts and circumstances against which needs to be taken. It’s one of the
rights of the individual to defend himself so he should be familiar with the relevant
matter so he may contradict the statement and safeguard himself. And the same was
followed in the present case as well, where the prior notice was sent to both the
parties (i.e., Bholenath and Abhay Thakkar) by the speaker and the proper duration
for them was given to present their side.

8. In the case of Shri Avtar Singh Bhadana V. Shri Kuldeep Singh, Indian National
Congress19, it was held that the member gets elected as a candidate of a political party
because of the programs and manifestoes of the party, apart from other things. If the
member criticizes his party publicly, he will be deemed to have given up his
membership to the political party voluntarily. Therefore, it is humbly submitted that
even in the instant case the petitioner had criticized his party publicly, which was a
valid reason for his disqualification as a parliament member.

9. In the case of Mt. Atras Devi and Ors V. Shri Ram Swaroop Prasad Singh20., it
was held that the petitioner knowing about the whip issued and being absent on the
day of voting cannot be said that he had no knowledge of the whip issued, to the
extent that the provision grant finality to the orders of the speaker. Even in the instant
case where the petitioner Dr Bholenath remained absent on the day of voting though
the whip was issued to him by his party leader, Mr. Abhay Thakkar. Hence, he was
removed from the parliamentary membership. Therefore, it is submitted that this was
a valid disqualification.

10. In the instant case the proper reason for the disqualification of the petitioner’s
membership in the parliament was clearly mentioned by the speaker. Which reads as
follows:
-Opposing his own party in Lok Sabha
-Criticizing governmental policy, publicly in an interview.
-Remaining absent for voting after whip issued by party leader.

19
Shri Avtar Singh Bhadana v. Shri Kuldeep Singh, Indian National Congress, Lok Sabha Bulletin, Sept. 10,
2008.
20
Mt. Atra Devi and Ors. vs Ramswaroop Prasad Singh and Ors, (1972) PAT 186.
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11. In the case of Kihoto Hollohan v. Zachillhu21 it was held that the speakers \chairman
hold a pivotal position in the scheme of parliamentary democracy and are guardians of
the rights and privileges of the houses. They are expected to and do take far reaching
decision in the parliament democracy. Vestiture of power to adjudicate questions
under the tenth schedule in them should not be considered exceptionable.

12. Hence in the present case the decision that is made by the speaker must be considered
as final as per the para 6 of 10thschedule. And it must not be considered as
exceptional. Hence it is humbly prayed that the Hon’ble court must reject the
petitioner’s appeal.

13. In the case of Jagdish Gandhi v. Legislative Council, Lucknow22., it was held that
if a member exceeds the limits of the freedom imposed by the constitution. It can be
dealt by the speaker or the house itself, but not by a court. That person has no remedy
in the courts.
14. As the speaker is a constitutional authority and he is the presiding officer of the house
in order to maintain the discipline and ensure smooth functioning of the house. Hence,
the matter decided by the speaker under tenth schedule need not be subjected to
judicial review.

15. In the present case the petitioner has exceeded the limit. Where under Article 105, the
privilege has been given to his free speech and expression regarding the subject matter
of the parliament it has to to be done within the boundary of parliament, but the
petitioner here has made the negative comments regarding his own party in public in
one of the TV interviews, which is outside the boundary of parliament. Hence the
disqualification made by the Speaker in the present case is valid.

16. Hence the Counsel for Respondent humbly submits before this Hon’ble court that the
speaker while deciding the matter under 10th schedule firmly satisfies the requirement
of independent adjudicatory machinery.

21
Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651.
22
Jagdish Gandhi v. Legislative Council, 1965 SCC OnLine All 378.
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ISSUE NO 3: WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION

PROHIBITING HONEST AND GENUINE DISSENT DESERVES TO BE DECLARED
AS UNCONTITUIONAL?

1. It is humbly submitted before the Hon’ble Court that the 10th Schedule of the
Constitution prohibiting honest and genuine dissent does not deserve to be declared as
unconstitutional. The 10th schedule aims to maintain stable government by ensuring
that the legislators do not switch sides and be honest to the electorate’s as well to the
party which they belong to.

2. In the instant case, the Hon’ble Speaker disqualified Dr. Bholenath Naik for opposing
the government’s policy publicly and by abstaining from voting which violates the
10th schedule of the constitution.

1.1 The 10th schedule gives strength to stable government

3. Paragraph 2(1) (a) and (b) provides the disqualifications incurred by a member. It
gives effect to this principle and sentiment by imposing a disqualification on a
member who votes or abstains from voting contrary to "any directions" issued by the
political party. This provision also recognizes two exceptions; one, when the member
obtains from the political party prior permission to vote or abstain from voting, and
the other, when the Member has voted but his action has been condoned by the
political party.

4. Para 2(1)(a) speaks about the voluntarily giving up the membership of either house of
parliament. In the case of Ravi S Naik v. Union of India23, the apex court interpreted
that in the absence of formal resignation by the member, the giving up of membership
can be inferred by his conduct. In Maha Chandra Prasad Singh v. Chairman
Bihar legislative council24, the member who belonged to Indian National Congress
(INC) was alleged to have incurred disqualification under paragraph 2(1)(a) of the
tenth schedule by contesting elections as an independent candidate. The chairman, in
this case, relied on the letter given by the chief of the INC in the council, which stated

23
Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641.
24
Mahachandra Prasad Singh (Dr.) v. Chairman, Bihar Legislative Council, (2004) 8 SCC 747.
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that the particular member had stopped being a member of their party for going
against the party and contesting the elections as an independent candidate thereby
breaking the party code of conduct.

5. As referred to the above cases Para 2(1)(a) does not violate any basic feature of
democracy and it disqualifies the members if they resign from the post or act against
the party which harms the party’s disciple.

6. Para 2(1)(b) of 10th schedule provides exception wherein if the members of the
parliament want to abstain from voting with prior permission or member have voted
but his action has been condoned by the political party. This exception gives a
member to reach their ideas of opposing before 15 days of voting the bill, if they do
not respond in discussion and if they abstain from voting then the member of the party
will be held under disqualification. We see that no rights have been curbed from the
members while voting or any right to express in the parliament if they have condoned
the political party prior.

7. In G. Viswanath v. Hon’ble Speaker Tamil Nadu Legislative Assembly25, the

supreme court ruled that members who publicly express opposition to their own party
or publicly demonstrate support for another party shall be deemed to have resigned.
8. It is humbly submitted that Dr. Bholenath Naik was informed to attend the voting of
the bill but he refused to attend the voting and violated the political party’s direction
and even did not submit the proper documentary which would support his contention.
And also Dr. Bholenath Naik strongly criticized the governmental policy in the public
interview which opposes the agenda of his own party and shows the disloyalty
towards his political party.

9. It is pertinent to refer the case of Rajendra Singh Rana v. Swami Prashad Maurya
&Ors,26., where the apex court ruled that members who publicly express opposition
to their own party or publicly demonstrate support for another party shall be deemed
to have resigned. This supports that Hon’ble speakers decision which held Dr
.Bholenath Naik liable for anti-party activities.

25
G. Viswanathan v. T.N. Legislative Assembly, (1996) 2 SCC 353.
26
Rajendra Singh Rana v. Swami Prashad Maurya &Ors, ( 2007) 4 SCC 270.
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10. In the case of Nabam Rebia, and Bamang Felix vs. Deputy Speaker Arunachal
Pradesh Assembly and Ors27., it was held that according to the Statement of Objects
and Reasons of the Bill that introduced it, it can be said that the anti-defection law
was meant to combat political defections and its goal was to keep the government
stable by preventing party loyalty swings.

11. In the instant case, The Hon’ble Speaker observed that voters gave votes to a
particular candidate as they supported the agenda of that political party which he was
representing and not merely to an individual candidate. This contention of the speaker
does not violate the principles of democracy because voters believe in the agenda of
the political party rather than the individual candidate, freedom of speech and
expression is not an absolute right as it is construed in the Kihoto Holohan’s
judgement.

12. In Kihoto Holohan's case 28, the constitutional validity of the act was challenged.
While explaining the objectives behind the tenth schedule, the supreme court
highlighted the roles of political parties in the political process. The court explained
that when elections are held, a party goes before the electorate with their manifesto,
which enlists their programs and policies. It sets up its eligible candidates to contest
elections and deals with all the expenses incurred in the process; therefore, such
candidates can be rightly set to be elected on the basis of the party manifesto. The
political propriety and morality underlying 10th schedule. Therefore, 10th Schedule
demands that if such a candidate, who gets elected as a member of a political party
subsequently changes his party and joins another party after the election, then such
candidate should lose his original seat in the legislature and contest by-election again
under the banner of the new party adopted by him.

13. It is humbly submitted before the Hon’ble court that 10th schedule of the Constitution
does not constrict any honest and genuine dissent which members are wanted to put
forward and its sole ideology is to bring the stability in the government by preventing
the members from floor crossing, defection and by allegation done by their own party
members. Defecting from the party under whose banner the representative won the

27
Nabam Rebia, and Bamang Felix vs. Deputy Speaker Arunachal Pradesh Assembly and Ors, (2017) 13 SCC
332.
28
Supra note 7.
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election is an injustice which is perpetrated on both the constituents of his

constituency and his political party.

14. Hence it is humbly submitted before the Hon’ble court that the 10th schedule does not
violate any honest and genuine dissent and does not deserves to be declared as
unconstitutional.

ISSUE NO 4. WHETHER SECTION 2(B) OF THE 10TH SCHEDULE VIOLATES

PARLIAMENTARY PRIVILEGES PROVIDED UNDER ARTICLE 105 OF
CONSTITUTION?
1. It is humbly submitted that the section 2(b) of the 10th schedule does not violates
parliamentary privileges provided under Article 105 of constitution.

2. It is pertinent to acknowledge that defection laws were introduced to check the

rampant practice of parliamentarians leaving the political party they have won the
election from and join other rival parties.

3. The first challenge to the anti-defection law was made in the Punjab and Haryana High
Court in the case of Parkash Singh Badal v. Union of India29. One of the grounds on
which the law was challenged was that paragraph 2(b) of the Tenth Schedule to the
Constitution violated Article 105 of the Constitution, wherein the court held:
“So far as the right of a member under Article 105 is concerned, it is not
an absolute one and has been made subject to the provisions of the Constitution and
the rules and standing orders regulating the procedure of Parliament. The framers of
the Constitution, therefore, never intended to confer any absolute right of freedom of
speech on a member of the Parliament and the same can be regulated or curtailed by
making any constitutional provision, such as the 52nd Amendment. The provisions of
Para 2(b) cannot, therefore, be termed as violative of the provisions of Article 105 of
the Constitution.”

4. Dissent is being seen as a member challenging the party or going against it. The reasons
for curbing the dissent are firstly, the elections are conducted to bring one of the parties

29
Parkash Singh Badal v. Union of India, 1987 SCC OnLine P&H 399.
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contesting for the elections into power and not the individual ministers contesting from
different locations. The emphasis is placed on the history of the votes received by the
party and not by any individual parliamentarian. Therefore, the parliamentarian must
adhere to the ideologies of the party, and censuring to them might lead one to lose. Even
in the instant case speaker observed that ‘voters gave votes to particular candidate as
they supported the agenda of that political party which he was representing and not
merely to an individual candidate. It is submitted that As Dr Bholenath wasn’t adhered
to the ideologies of the party and censoring to them have lead to lose his membership.

5. Secondly, a parliamentarian diverging from the views of the party is seen as a symbol
of the instability of the party and poor unity within the party.30 In the instant case
speaker have specifically mentioned that expressing views publicly against own party
definitely be construed as anti-party act

6. The Hon’ble Supreme Court in Kihoto Hollohan31 case also highlighted the demerits
of dissent by the parliamentarians. Without any iota of doubt, all the political parties
would cherish that all their members support their stand. This has been imbibed under
the law using the anti-defection law applicable to the parliamentarians regardless of the
fact that the parliamentarian has to take a decision not only for the benefit of the party
to which one belongs but also to the constituency one has been elected. The very fact
that if the parliamentarian votes against the decision of the party i.e., show his dissent
considering him being disloyal is in itself fallacious. The independent opinion of the
member must matter because that would lead to a successful operation of the democracy
by bringing in the needed modifications required. Thus, the parliamentarians belonging
to the same party are bound to be contingent along the wishes of their leaders in which
direction their vote has to be casted.

7. In the case of Kihoto Hollohan32 the constitutionality of the Tenth schedule was
questioned before the Supreme Court wherein arguments were presented regarding
curtailment of the right to freedom of speech of elected representative enshrined in
Article 19, 105 and 194 of the Indian Constitution. Supreme Court struck the issue
down by stating, “Freedom of Speech can be curtailed for larger interest”.

30
KihotoHollohan v Zachillhu, 1992 Supp2 SCC 651.
31
Ibid.
32
Ibid.
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MEMORIAL ON BEHALF OF THE RESPONDENT
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8. By a 3:2 majority, the Court held that the provisions of the Tenth Schedule were not
violative of the freedom of speech, vote and conscience of the members.33 Such
provisions in the view of the Court are intended to strengthen the fabric of Indian
Parliamentary democracy by curbing unprincipled and unethical political defections.34
It said that the freedom of speech of a member is not an absolute freedom.35 The
freedom is subject to the provisions of the Constitution and the rules and standing
orders regulating the Procedure of the House [Article 105(1) and Article 194(1)].

9. It is humbly submitted that the anti-defection laws were introduced to check the
rampant practice of parliamentarians leaving the political party they have won the
election from and join other rival parties. The framers of the Constitution, therefore,
never intended to confer any absolute right of freedom of speech on a member of the
Parliament and the same can be regulated or curtailed by making any constitutional
provision, such as the 52nd Amendment. Hence, it is humbly submitted that the
provisions of Para 2(b) cannot, therefore be termed as violative of the provisions of
Article 105 of the Constitution.

33
Ibid.
34
Ibid.
35
Ibid.
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MEMORIAL ON BEHALF OF THE RESPONDENT
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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to:

1. Dismiss the Petition.

2. Declare that the Speaker satisfies the requirement of independent adjudicatory machinery.

3. Declare that the 10th schedule is constitutional.

4. Declare that section 2(b) of the 10th schedule does not violate parliamentary privileges under
Article 105.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Respondent as in duty bound, shall humbly pray.

COUNSELS FOR THE RESPONDENTS.

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MEMORIAL ON BEHALF OF THE RESPONDENT